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In life, generally, we are often encouraged to think outside the box. Whatever that means, the position in the murky world of legal of reasoning is different. In legal reasoning, one is not to reason outside the box unless she completely exhausts the space within the box. In other words, the creation of a new legal rule or a legal fiction should be the last resort in resolving legal problems.

New Law

In Amidu v A-G, Waterville & Woyome (No. 2), the Supreme Court (the “Court”), constituted by a single Justice of the Court, seems to have created a new legal rule, a kind of legal fiction. The learned Justice admitted this when he cited that hallowed passage in Tuffour v A-G as authority for his liberal interpretation of Article 2 of the Constitution. The new rule may be stated as follows:

The right to enforce the Constitution includes the right to enforce an order of the Court enforcing a provision of the Constitution.

This rule is so so that a person who has the right to invoke the enforcement jurisdiction of the Court on a particular issue is deemed as also having the right to personally enforce the execution of the order made by the Court pursuant to the enforcement jurisdiction.

My Claims

In my previous article on this issue, I explained that the Court has, without more, created a qui tam jurisdiction in the Republic. In this article, I make 2 other claims. The first is that the Court, constituted by a single Justice of the Court, has no jurisdiction to interpret Article 2 of the Constitution. My second claim is that, even if the Court did have jurisdiction, there was no need for it to create that new legal rule. For want of space, however, I will limit this discussion to the second claim, not least because I think it is also the most difficult of the 2 claims.

Constitution versus Court Orders

Hon Amidu’s action was hinged on Article 2 of the Constitution. Article 2 deals with enforcement of the Constitution. This means that a person may rely on Article 2 to commence an action for the enforcement of “a provision of this Constitution.” Article 2, at least on the face of it, does not deal with the enforcement of the Court’s orders. There are 2 reasons why Article 2 does not and may not be a basis for enforcing the Court’s order.

The first is that there is a difference between the provisions of the Constitution, on one hand, and the Court’s orders, on the other. Even though the Court’s Article 2 order is always consequent upon its interpretation or application of the provision of the Constitution, the enforcement of those orders involves entirely different consideration, both substantive and procedural, than the factors that the Court considers when it is called upon to enforce a provision of the Constitution.

The second reason is that the Court, when exercising its enforcement jurisdiction, has, itself, the power to order an appropriate person (including the President) to enforce its orders. Therefore, a proper exercise of the Court’s enforcement power should not give rise to a situation where (as here) a new legal rule would have to be created constituting a private person into a public or quasi-public official just to get the Court’s order enforced. In other words, when the Court properly exercises its enforcement powers, the order it gives, without more, becomes a binding legal duty on a person already clothed with public power.

Duty to Enforce

This legal duty, too, comes with at least 3 cardinal incidents: The first incident is that the duty is public (rather than private) in nature. This derives from the fact that a constitutional matter is a public matter; and, conceptually, cannot give birth to an order directed at or enforceable by a private person. The duty to enforce such an order, naturally, could only be performed by a public officer, not a private person.

The second incident of the duty is that the public officer has no discretion in her performance of the duty. This derives from the principle that a public official has no discretion when directed by a court of competent jurisdiction to perform a public function. Indeed, such a public official is bound to perform the duty strictly, precisely and exactly in accordance with the terms of the Court’s order, even if the order is void or voidable.

The third (and last) incident of the duty is that refusal by the public officer (even if that officer is the President) to obey or carry it out precisely and exactly in the terms of the Court’s order constitutes a high crime under the Constitution.

The Substantive Order

From the above, it may be pretty obvious that everything depends on the nature and terms of the Court order in question. The issue, then, is: what is the nature of the Court’s order in the substantive case, that is, the case whose judgement Hon. Amidu now seeks to enforce? In the substantive case, the Court made 3 declarations and only one order. The order states as follows:

“An order directed at the 3rd Defendant [Mr. Woyome] to refund to the Republic of Ghana all sums of money paid to him upon or as a result of the unconstitutional conduct of the 1st Respondent, therein 1st Defendant [the Attorney-General], in purported pursuance of the said inoperative Agreement dated 26 April 2006.”

Indeed, there is nothing wrong with this order until one begins to realise (as we all now have) that the order is directed at the judgment-debtor to pay; and that there is no specific or precise order directed at any public officer to enforce payment. This deficiency (as to “who” should enforce), in itself, is not fatal to the course – the Attorney-General is not without a duty to enforce payment on the ground only that the Court did not expressly say so. This is because (and as Hohfeldian correlatives tell us): to every legal duty there is a correlative legal right and vice versa. Therefore, a duty on a judgement-debtor to pay creates a concomitant right in the judgement-creditor to enforcement payment.

In respect of time of payment, too, lack of express timelines does not mean that the payment may be made at the behest of the judgement-debtor. This is because, one may, again, recall that where (as here) time is of the essence and there is no time given, reasonable time is the time which will apply. Going forward, one may say that the questions of “who” bears the duty and “when” to perform the duty are not unanswered. Indeed, the Attorney-General (a public officer) is under a duty to collect the monies from the judgement-debtor for the Republic within a reasonable time.

How to Enforce

This leaves us with the question of “how” to perform the duty. And this is exactly where Order 46 of CI 47 comes in. The relevant part of the Order says that:

“… where a person has obtained a judgment or order for the payment of money by some other person, hereinafter referred to as “the judgment debtor”, the Court may, on all application made ex-parte by the person entitled to enforce the judgment or order, order the judgment debtor to attend before the Court and be orally examined on the questions …”

There is no doubt that “the person entitled to enforce the judgment or order” on behalf of the Republic here is the Attorney-General or another public officer acting on her advice or directive. Indeed, there are more than one ways by which the Attorney-General may perform this duty; and there is some evidence that the Attorney-General has been using some collection methods.

However, it appears (and Hon Amidu deposes so before the Court) that the Attorney-General has, either unwilling or unable, failed to enforce the Courts orders, at least, in the manner that Hon Amidu expects her to. Indeed, if it is the view of Hon Amidu or another citizen that Order 46 is the best or, even, the only method of enforcing payment, the existing legal regime is not silent on “how” to get the Attorney-General or another public officer to use that method. Particularly, the Civil procedure rules allows a party to:

“upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within that person’s knowledge or could not be produced by that person at the time when the judgment was given or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, apply for a review of the judgment or order.”

An application under this rule allows the Court to review and revise its previous order and to make new orders to give proper effect and meaning to its judgement. This rule therefore offers an avenue for the Court to make, if it so wishes, specific orders directed at the Attorney-General, including an order to her to adopt the Order 46 method to enforcing payment.

If the Court does so, the Attorney-General would, as it were, be torn between the choices of committing high crime or obeying the Court’s order. This, no doubt, would have delivered the same result of getting the judgement enforced by the Order 46 methodology without necessarily creating a new rule, which in turn puts the Court’s ruling at war with well-established jurisdictional and jurisprudential positions.

Outside the Box

It seems obvious, therefore, that the Court has absolutely no reason to create a new rule to solve a problem for which a solution already exists at law. In other words, the Court has not exhausted the space within the box before venturing into creating the new legal rule; and, most importantly, doing so without being certain of its jurisdiction.

Since the Supreme Court of Ghana (Court or SCOGH) gave its decision in the 2016 Ramadan case on the fate of names that entered the voters register, there has been a huge disagreement over exactly what the Court ordered the Electoral Commission (EC) to do. In this short article, I trace the journey of the NHIS names in the register from 2012, through the 2014 Ramadan case to now. I conclude that the Court did not order the EC to clean the register in any specific manner.

2014 Ramadan

In 2014, the Plaintiffs in this 2016 case went to SCOGH to seek an answer to the question whether the use of the NHI card as provided under regulation 1 (3) (d) of C.I. 72, as proof of qualification to register, is inconsistent with Article 42 of the 1992 Constitution. In other words, they sought to challenge EC’s decision to register voters using NHIS cards.

The Plaintiffs’ reason for the challenge was as follows: (1) by Article 42 of the Constitution, voting in public elections or referenda is reserved for Ghanaian nationals only; (2) an NHIS card does not prove its holder’s nationality at all (in fact, a non-national, too, may hold an NHIS card); and, therefore, (3) the EC’s use of NHIS cards as one of the tools for determining who is qualified to be registered to vote violated Article 42.

Indeed, the Supreme Court agreed with the Plaintiffs, even amidst vehement denial by the EC that the NHIS card (and other cards) were for purposes of determining nationality. Accordingly, the Court declared the law, Regulation 1(3)(d) of CI 72, unconstitutional.

No NHIS Cleaning

Having declared the said law unconstitutional, one would, naturally, expect the EC to devise a way of deleting the names of persons who registered, at least, using the NHIS card. In fact, a committee established by the EC itself seemed to have this in mind when it concluded that the voter register was not ‘clean.’ That notwithstanding, it appears, the EC has no intention of carrying out such deletions; at least, not in the manner that the Plaintiffs and their supporters want.

Exhibition

In the meantime, the EC has devised its own method for cleaning the voters register. The EC refers to this method as ‘exhibition’. ‘Exhibition’ entails an invitation to the public to help the EC delete names of persons who ought not be on the register but are on the register. Perhaps, this is pursuant to the the EC’s ardent belief that the “responsibility of having a clean and credible register is the shared responsibility of all citizens of Ghana.” However, the criteria for deletion under the ‘exhibition’ exercise does not allow a name to be deleted on the sole grounds that the flew on to the register on the back of an NHIS card.

Further, the exhibition entails petitioning the District Registration Review Committee (DRRC). By law, the EC may not, by and of itself, delete a person’s name from the register without an order from the DRRC to do so. The combined effect of the EC’s methodology, therefore, is that the NHIS names will remain on the register even after the exhibition.

2016 Ramadan

Clearly, we do not expect the Plaintiffs and, of course, their supporters to be enthused by this methodology. So early this year, Ramadan and his friend returned to the Court. This time round, they asked the court to, among others, either (a) set aside the entire voters register as void; or in the alternative (b) make “an order compelling the Electoral Commission to audit the current register of voters through the validation of the registration of each person currently on the register … [and] to delete the names of unqualified persons …” Of course, by ‘unqualified persons’, the Plaintiff have in mind, firmly, the NHIS names on the register.

The Issue

It is pretty obvious that relief (a) falls squarely within the power of the Court. However, relief (b), which is very detailed, appears to seek to direct the EC as to how to perform its day-to-day functions in a particular manner. Lest we forget, the EC’s independence is guaranteed under the 1992 Constitution. To grant relief (b), therefore, the Court must first answer a fundamental jurisdictional question. The question, as the parties to the case themselves put it in issue (5), is:

“Whether the court has jurisdiction and authority to make orders compelling 1st defendant [EC] to discharge its functions in a particular manner.”

The court began answering this question by reiterating its decision in the 2014 Case. As already mentioned, the Court, in that case, held that the use of NHIS cards as a way of determining a person’s qualification to be registered to vote is unconstitutional.

‘Void’ not Exactly Void

Generally, an act is unconstitutional if it is found to be inconsistent with any provision of the constitution under which it is purported to be done. According to our Constitution, such an act, “to the extent of the inconsistency [is] void.” Therefore, by the very provision of the Constitution, every act which is unconstitutional is also void – void ab initio. The legal meaning of ‘void’ is ineffectual, nugatory, having no legal force, no binding force. Its effect is that the relevant act is deemed as though it was never done. It never was in the eyes of the law. Such an act is incurably bad and cannot yield any fruit whatsoever.

Going by this reasoning (and the Plaintiffs did argue so), it follows that persons who were registered by the EC using NHIS cards were never registered. In the eyes of the law, they are not on the register, right from the day of their purported registration. That is it.

Indeed, the Court addressed this issues. However, the Court seems to have a slightly different view from the above analysis on the effect of a void act. The court speaking through Gbadegbe, JSC, had this to say:

“The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections. As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of [NHIS] cards should not automatically render them void.”

In other words, the court does not believe that an unconstitutional act is necessarily void. In fact, this case may be the authority for saying that an act which is done in good faith, though subsequently declared unconstitutional, is not void automatically. At this point, I must say, we all must begin to develop some humongous love for interpretation. For this is exactly where the Plaintiffs’ end begins.

To Control or not to Control

The Court then turned to the issue in relation to its power of the Court to grant the plaintiffs’ detailed relief. The relief turns on what the Court thinks it can do in the life of an independent constitutional body (like the EC). In this regard, the court opined through Gbadegbe, JSC, as follows:

“A careful scrutiny of the constitution reveals that its function under article 45(a) is not subject to any other provision, therefore in performing the said function, we cannot make an order compelling the Commission to act in a particular manner.”

Benin JSC (who wrote a separate concurring opinion) confirmed this position. He began his confirmation by, first, counter-accusing the Plaintiffs. He said:

“The plaintiffs have not told this court that the 1st defendant has taken any step contrary to law, nor have they been accused of breaching its discretionary power.”

Then, he concluded just like his brother, Gbadegbe, JSC:

“In the absence of such breaches, the court has no power to compel or even to direct the 1st defendant as to how to exercise its constitutional mandate to produce a credible register.”

Accordingly, the court held unanimously that “the result is that issue (5) receives an answer in the negative.”

The Exact Order

Base on this, the Court ordered that “the Electoral Commission takes steps immediately to delete or as is popularly known ‘clean’ the current register of voters to comply with the provisions of the 1992 Constitution, and applicable laws of Ghana.”

Effect of Order

The Court having held that it cannot direct the EC as to how to produce a credible register, may one still say, and honestly so, that the Court has ordered the EC to delete from the voters’ register the names of persons who registered with the NHIS card? Would such an order not amount to the Court controlling the EC, something it has, for good or bad, vowed not to do?

I am persuaded, forcefully, by the school of thought that suggests that the Court’s orders in the Ramadan 2016 does not include an order directed at the EC to remove, delete or clean the register of names that entered it on the back of NHIS cards. And in case you doubt this position, just see what Benin, JSC, had to say to on the Plaintiffs’ preferred methodology for the validation of the register:

“However efficacious the [Plaintiff’s] system of validation may be, even the 1st defendant cannot employ it unless it is sanctioned by the law or regulations. That is the more reason why such issues should not be brought before a court without the legal basis.”

Perhaps! Maybe, perhaps, had SCOGH given ‘void’ its natural meaning and effect, we would be at a place other than here.